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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554



In the Matter of                  )
                                 )
Citicasters Co.                   )       Control    No.    EB-00-
                                 IHD/99090359
Licensee of Station KSJO(FM)      )     NAL/Acct. No. X32080031
San Jose, CA                      )     Facility #4117
                                 )
                                 )


             NOTICE OF APPARENT LIABILITY FOR FORFEITURE

                                
Adopted:  September 25, 2000                      Released:  
September 26, 2000

By the Chief, Enforcement Bureau:

                                                  
                        I.   INTRODUCTION

     1.   In this Notice of Apparent Liability for Forfeiture, we 
find  Citicasters  Co.  (``Citicasters''),  licensee  of  Station 
KSJO(FM), San Jose, CA, apparently liable for a forfeiture in the 
amount of seven thousand dollars  ($7,000) for a violation of  18 
U.S.C.  1464 and Section  73.3999 of the Commission's rules,  47 
C.F.R.  73.3999, by broadcasting indecent material. 


                         II.  BACKGROUND

     2.   The Commission  received  information  indicating  that 
Station KSJO(FM), San  Jose, CA,  may have violated  18 U.S.C.   
1464 by broadcasting allegedly indecent material when it aired  a 
``joke'' on August 25, 1999, at approximately 1:15 p.m.  Attached 
is a  transcript of  the ``joke''  that is  the subject  of  this 
action.  We issued  a letter  of inquiry,  asking Citicasters  to 
comment on the complaint.   Citicasters responded to our  inquiry 
on July 7, 2000. 

                      III.      DISCUSSION

     3.   Section 503(b)(1)(D) of the  Act provides in  pertinent 
part:

     Any person  who is  determined  by the  Commission,  in 
     accordance  with   paragraph  (3)   or  (4)   of   this 
     subsection, to have - violated any provision of section 
     1304, 1343, or  1464 of title  18, United States  Code; 
     shall be liable to the  United States for a  forfeiture 
     penalty.

     4.   Pursuant to 47  U.S.C.   312(a)(6) and  503(b)(1)(D), 
the  Commission  has  statutory  authority  to  take  appropriate 
administrative  action  when  licensees  broadcast  material   in 
violation of 18 U.S.C.  1464, which provides criminal  penalties 
for anyone who "utters any obscene, indecent or profane  language 
by means of radio communication."  

     5.   The Commission defines broadcast indecency as  language 
or material  that, in  context, depicts  or describes,  in  terms 
patently  offensive   as  measured   by  contemporary   community 
standards  for  the   broadcast  medium,   sexual  or   excretory 
activities  or  organs.   Infinity  Broadcasting  Corporation  of 
Pennsylvania, 2  FCC  Rcd  2705  (1987),  aff'd  3  FCC  Rcd  930 
(1987)(subsequent  history   omitted)(citing  FCC   v.   Pacifica 
Foundation, 438 U.S.  726 (1978)).   The United  States Court  of 
Appeals for  the  District of  Columbia  Circuit has  upheld  the 
Commission's authority  to  restrict the  broadcast  of  indecent 
material at times when there  is a reasonable risk that  children 
may be in the audience.  Action for Children's Television v. FCC, 
852 F.2d 1332 (D.C. Cir. 1988).  The court subsequently concluded 
that a 10:00 p.m. to 6:00  a.m. "safe harbor" was justified as  a 
properly  tailored   means   of  vindicating   the   government's 
compelling interest  in  the  welfare of  children.   Action  for 
Children's Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995), cert. 
denied, 116 S. Ct. 701 (1996) (ACT III).

     6.   In response to our inquiry, Citicasters admits that the 
``joke'' is crude, and it states that the on-air talent  involved 
was reprimanded for  airing such  material.  Citicasters  argues, 
however, that the ``joke'' is not indecent because ``it does  not 
describe sexual activities or organs in terms patently  offensive 
as measured  by  contemporary  community  standards.''   Instead, 
Citicasters claims that the ``joke'' ``relies simply on innuendo, 
the sexual  import  of which  is  not inescapable.''   We  reject 
Citicasters' arguments. The Commission  has repeatedly held  that 
``innuendo may be  patently offensive within  the meaning of  our 
indecency definition if it is understandable and clearly  capable 
of a specific sexual or  excretory meaning which, in context,  is 
inescapable.''  San Francisco Century  Broadcasting, L.P., 8  FCC 
Rcd 498 (1993).  We believe the ``punch line'' of the ``joke'' is 
an  inescapable  reference  to  incest  and  sex  with  children.  
Citicasters does not offer  any alternative interpretation  under 
which the ``joke''  is not  referring to sexual  activities in  a 
patently offensive manner.  Under these circumstances, it appears 
that  the  excerpt  contains   language  that  describes   sexual 
activities or organs  in patently offensive  terms.  Because  the 
material aired  at  approximately 1:15  p.m.,  when there  was  a 
reasonable risk that children may  have been in the audience,  it 
is legally actionable.  Thus, it appears that on August 25, 1999, 
at approximately 1:15 p.m., Station KSJO(FM) violated 18 U.S.C.  
1464 and  Section 73.3999  of the  Commission's rules  by  airing 
indecent programming.    

     7.    Section 503(b) of the  Communications Act of 1934,  as 
amended, (the ``Act''), 47 U.S.C.   503(b), and Section  1.80(a) 
of the Commission's rules, 47  C.F.R.  1.80(a), both state  that 
any person who willfully or  repeatedly fails to comply with  the 
provisions of  the  Act  or  the rules  shall  be  liable  for  a 
forfeiture penalty.  For purposes of  Section 503(b) of the  Act, 
the term ``willful'' means that  the violator knew it was  taking 
the action in question, irrespective of any intent to violate the 
Commission's rules. See Southern  California Broadcasting Co.,  6 
FCC Rcd 4387 (1991).

     8.   The Commission's  Forfeiture  Policy Statement  sets  a 
base  forfeiture   amount   of   $7,000   for   transmission   of 
indecent/obscene materials.1   The  Forfeiture  Policy  Statement 
also specifies  that the  Commission  shall adjust  a  forfeiture 
based upon  consideration of  the factors  enumerated in  Section 
503(b)(2)(D) of the Act, 47  U.S.C.  503(b)(2)(D) such as  ``the 
nature, circumstances, extent and gravity of the violation,  and, 
with respect  to the  violator, the  degree of  culpability,  any 
history of prior offenses, ability to pay, and such other matters 
as  justice  may   require.''2   After  reviewing   all  of   the 
circumstances, we believe a  $7,000 forfeiture is appropriate  in 
this case.     

                      IV.  ORDERING CLAUSES

     9.   ACCORDINGLY, IT IS ORDERED, pursuant to Section  503(b) 
of the  Communications  Act of  1934,  as amended,  and  Sections 
0.111,  0.311,  and  1.80   of  the  Commission's  rules,3   that 
Citicasters Co. is hereby NOTIFIED of its APPARENT LIABILITY  FOR 
FORFEITURE in the amount of  seven thousand dollars ($7,000)  for 
willfully violating  Section 503(b)(1)(D)  of the  Communications 
Act of 1934, as amended, and Section 73.3999 of the  Commission's 
rules.

     10.   IT IS FURTHER ORDERED, pursuant to Section 1.80 of the 
Commission's rules, that  within thirty  days of  the release  of 
this Notice, Citicasters SHALL PAY to the United States the  full 
amount of  the  proposed  forfeiture  or  SHALL  FILE  a  written 
statement seeking  reduction  or  cancellation  of  the  proposed 
forfeiture.

     11.  Payment of  the forfeiture  may be  made by  mailing  a 
check   or   similar   instrument,   payable   to   the   Federal 
Communications Commission, to the Forfeiture Collection  Section, 
Finance  Branch,  Federal  Communications  Commission,  P.O.  Box 
73482, Chicago, Illinois 60673-7482.  The payment should note the 
NAL/Acct. No. referenced above.

     12.  The response,  if any,  must be  mailed to  Charles  W. 
Kelley, Chief, Investigations and Hearings Division,  Enforcement 
Bureau, Federal Communications Commission, 445 12th Street,  S.W, 
Room 3-B443, Washington DC 20554 and MUST INCLUDE the file number 
listed above.

     13.  IT IS FURTHER ORDERED that a copy of this Notice  shall 
be  sent,  by   Certified  Mail/Return   Receipt  Requested,   to 
Citicasters' counsel,  John  M.  Burgett,  Esq.,  Wiley,  Rein  & 
Fielding, 1776 K Street, N.W., Washington, DC 20006. 


                         FEDERAL COMMUNICATIONS COMMISSION


     
                         David H. Solomon
     1.   Chief, Enforcement Bureau


Attachment
Radio Station:              KSJO(FM), San Jose, CA
Date/Time Broadcast:  August 25, 1999, at approximately 1:15 p.m.
Material Broadcast:      ``Joke''
99090359
ksjoaa




Complainant states:

     A little girl comes into the bathroom where Mommy is  taking 
     a shower.   The  little  girl  points  to  Mommy  and  asks, 
     ``what's that?''   Mommy says,  ``that's my  vagina.''   The 
     little girl asks,  ``when do  I get one  of those?''   Mommy 
     says, ``when you  get older.''  The  little girl comes  into 
     the bathroom where Daddy  is taking a  shower she points  to 
     Daddy and asks, ``what's  that?''  The Daddy says,  ``that's 
     my penis.''  The little  girl asks, ``when do  I get one  of 
     those?''  The Daddy says, ``as  soon as Mommy goes to  work. 
     '' .  









_________________________

1 The Commission's Forfeiture  Policy Statement and Amendment  of 
Section 1.80 of the Commission's  Rules, 12 FCC Rcd 17087,  17113 
(1997), recon. denied  15 FCC Rcd  303 (1999) (Forfeiture  Policy 
Statement); 47 C.F.R.  1.80(b).

2 12 FCC Rcd at 17110.

3 47 C.F.R.  0.111, 0.311 and 1.80.